10. The question of justiciability is dealt with in the grounds at tab 1 para 7-9, tab 2 paras 19-37. Justiciability goes to the separation of powers between the Executive and the Courts. In the present case, the question of justiciability will come to this: is the substantive issue in this claim for judicial review one which is within the exclusive province of the Executive (as say the defendants), or is it (as says the claimant) a relevant question of law proper for a ruling by the Court in the exercise of its supervisory jurisdiction to ensure that the Executive does not take political decisions on the basis of an erroneous understanding of the law?

11. There is a more immediate question, on this initial hearing: is it appropriate to compartmentalise the questions of (i) justiciability and (ii) international law, so as to deal with the former on a blanket basis and isolated from an analysis of the issue of substance. As to this:

(1) The claimant submits that compartmentalisation is inappropriate. The response of the Court is linked to the particular context²¹, and will involve an analysis of the nature of the issue, as to whether it has legal relevance and merit. Justiciability cannot be approached in a vacuum. The law on justiciability has now reached a similar position to that which the law on standing reached long ago, it being undesirable to isolate standing from legality.²²

(2) Given that the defendants seek to have the claim dismissed without consideration of international law, it would be appropriate for the Court to test the position by assuming in the claimant's favour that the claimant is right (a) that the international law question is relevant, and (b) as to the answer to the international law question. The defendants' suggested knock-out blow is not said to be: (a) that international law (justiciable where legally relevant) is irrelevant in this case; nor (b) that the claimant is plainly and obviously wrong about international law.

12. The claimant advances the following propositions, in support of its contention that this case ought not to be dismissed as non-justiciable, and certainly not without addressing and analysing the argument on international law:

1) The domestic Court has jurisdiction to rule on a relevant question as to what international law requires, that not being per se a matter within the exclusive province of the Executive. The question of international law must be one which is relevant to the position of the Executive in the particular case, over which the Court is exercising its supervisory jurisdiction.

See eg. R (on the application of Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598.

2) The prohibition on the use of force has the character of jus cogens, a peremptory norm of customary international law. It is a well established rule of English law that all rules of customary international law are part of the law of the land; and that among those rules of customary international law ius cogens enjoys a higher status as one of the fundamental standards of the international community. Violations of jus cogens therefore come under the court’s supervisory jurisdiction.

(see Abbasi at [28], [68]-[69]; Oppenheim at 56-57; Trendtex Trading Corporation v Central Bank of Nigeria [1977] QB 529; Reg. v. Bow Street Magistrate, Ex p. Pinochet (No. 3) [2000] 1 AC 147 at 198)

3) International law is relevant to the Court's supervisory jurisdiction where the Executive has a stated intention to act by having regard to international law. The Court can appropriately assume the judicial function of ensuring that the Executive directs itself correctly as to what international law requires.

See R v Secretary of State for the Home Department, ex p Launder [1997] 1 WLR 839, 867C-F (Lord Hope); R v Director of Public Prosecutions, ex p Kebilene [2000] 2 AC 326, 367E-H (Lord Steyn) 341 (Lord Bingham).

4) The Court can properly express a view on international law, without there needing to be a statutory context under consideration; though, if there is, international law cannot assist if inconsistent with a clear domestic statutory provision.

See Abbasi at [57]; R v Lyons [2002] 3 WLR 1562 at [14] (Lord Bingham CJ), [28] (Lord Hoffman), [67] (Lord Hutton), [81] (Lord Hobhouse), [109] (Lord Millett).

 

1) Justiciability depends not on any general principle but on subject matter and suitability in the particular case.

See Abbasi at [85].

2) A case is not to be treated as non-justiciable simply because it relates to a sensitive `field of activity'. Thus, even Executive decisions dealing directly with matters of defence are not immune from judicial review, since that would be repugnant to the rule of law.

See R (on the application of International Transport Roth GmbH) v Secretary of State for the Home Department [2002] EWCA Civ 158 [2002] 3 WLR 344 at [85] (Laws LJ).

3) What matters is whether the particular issue is or is not one which lies within the exclusive province of the Executive.

See Secretary of State for the Home Department v Rehman [2001] UKHL 47 [2001] 3 WLR 877 at [54] (Lord Hoffmann).

4) Illustrative of a particular complaint not susceptible of judicial determination is the scrutiny of a defence-related decision on grounds relating to its factual merits.

See Roth at [85] (Laws LJ).

13. The Court is invited to reject the suggestion that there is in this case a justiciability bar which precludes the Court from analysing, and excuses the defendants from answering, the substantive question of law.

14. The defendants have now²³ suggested that the very act of speaking about what international law requires might involve disclosing material which would threaten the security of the State. That, however, betrays a misapprehension of what the issue is (and what it is not: paragraph 6 above). The issue is and remains whether Resolution 1441 authorises States to take military action in the event of non-compliance by Iraq with its terms or whether a further Security Council Resolution is needed. That is a question of interpretation of the Resolution within its legal context (Chapter VII of the Charter and customary international law).

15. In his witness statement of 5 December 2002, Peter Ricketts states that the disclosure of a definitive statement of the Government’s legal position would be prejudicial to the national interest and to the conduct of the Government’s foreign policy. He states that in international relations issues of law, politics and diplomacy are closely bound up together, and that the assertion of arguments of international law by one state is in practice regarded by other states as a political act. The UK’s international alliances could be damaged by the incautious assertion of arguments under international law which affect the position of those other states, and its success in negotiations prejudiced. Furthermore an adversary could plan on the basis of the legal ‘bottom line’.

16. This is not a debate about international relations, it is a judicial adjudication on a question of legal interpretation. Moreover;

(1) The UK has an obligation both internationally and domestically to act in accordance with customary international law. There is no doubt that this obligation is justiciable in the international courts (see the Nicaragua case). In the Expenses case (1962) ICJ reports, 151 the ICJ firmly rejected the suggestion that it could not interpret a provision of the UN Charter because the question put to it was intertwined with political questions. It stated: "The court…cannot attribute a political character to a request which invites it to undertake an essentially judicial task, namely, the interpretation of a treaty provision."

(2) If international courts will consider a concrete legal question which nonetheless has political significance, there is no reason why a domestic court should be precluded from doing so on that ground alone (see R v Home Secretary ex parte Adan [2001] 2 AC 477).

(3) It is clear that the Government regularly states what its understanding of international law and Resolution 1441 is (see Ambassador Greenstock’s statements to the Press (p63), the Prime Minister’s statements to the press (p70B), Mr Straw in Parliament (pp259A- F) and that it will comply with international law.

(4) If the Government is giving assurances to the British public that it will act in accordance with international law the British public is entitled to know what that means. The Government is effectively saying that it wants the option of acting unlawfully without the opprobrium of being seen to do so. This is not a valid ground on which a Court should judge an issue to be non-justiciable.

(5) The Government’s argument is essentially one of timing. Once it takes action upon a breach of SCR 1441 then the question will be whether the action it took was compatible with international law, and all the arguments about prejudice in Mr Rickett’s witness statement would fall away. Is the Court to reject a claim on the grounds of non-justiciablity on the basis that it is prejudicial for a Government to discover that its proposed action is unlawful before the event has taken place, when that Government stated publicly that it would only act in accordance with international law?

17. The Claimant’s application for a declaratory judgment does not in any way involve forecasting the future (Mr Ricketts paragraph 10 of his witness statement). The Claimant is not seeking to pre-empt any future decisions on whether the UK would be entitled to take action on the basis of Article 51 of the UN Charter, or for humanitarian reasons. The Claimant’s application relates to Resolution 1441 and whether a further UN Security Council Resolution would be required to enforce against any breach of that resolution. That is a pure question of interpretation of the Resolution itself against the background of the UN Charter and customary international law. The meaning of the Resolution will not change even if the circumstances do.

18. If the defendants seek to take a point (and at this permission stage) in relation to the prospective nature of the claim or the question of sufficient interest, each is dealt within in detail in the grounds for judicial review: tab 1 paras 10-11; tab 2 paras 38-50. The claimant submits that, if and to the extent that the claim is "non-justiciable" then it will fail for that reason. Similarly, if the claimant is wrong as to the nature of the international law question and/or the answer to that question, the claim would for that reason be dismissed. If, however, the matter is justiciable and the claimant is right that there is a relevant question of international law on which it is correct, it would not be right for the claim to fail on some other ground relating to its timing or the identity of the claimant.

19. The case raises issues of very great importance, brought in the public interest. Although it is "prospective" in the sense that the defendants have said that no decision has been taken as to military action (pp.98, 115, 270):

(1) The prospect of military action is and remains a real one: paragraph 7 above.

(2) The issue of international law, whether ruled on by the Court or even if left to the exclusive province of the Executive, would necessarily need to inform prospectively the decision whether to proceed with military action.

(3) It cannot seriously be suggested that, if justiciable, it would be better for the issue to be resolved after military action has been taken.

20. In fact, this would be a very good example of the Court appropriately using its "advisory" jurisdiction (R v Secretary of State for the Home Department, ex p Mehari [1994] QB 474, 491G-H (Laws LJ); In re S (Hospital Patient: Court's Jurisdiction) [1996] Fam 1, 18A (Sir Thomas Bingham MR)).

(1) The issue is of public importance, serving a useful purpose in the public interest, is in sufficiently precise terms and the appropriate parties are before the Court: see London Borough of Islington v Camp 20th July 1999 unrep.; also The Woolf Report, Access to Justice (1996) at p.252 .

(2) An advisory declaration would mean that whatever political choices are made by Government, they would be made on an informed basis as to the law (favourable or adverse) and facing up to the legal implications: cf. (by way of analogy) R v Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115, 131E-F (Lord Hoffmann).

 

21.The Court is invited to decline the Government's invitation to dismiss this important case without consideration of the issue of international law, and to make directions for the further conduct of these proceedings.